Can a Defendant (or his Attorney) Ask the Jury to Nullify?

Factual Questions
241

The problem in the South wasn’t a shortage of blacks to serve on juries, it was that they were actively barred - from juries, voting, lunch counters, bathrooms, drinking fountains, etc. If that’s the case, the problem isn’t the concept of jury nullification.

IIRC, there’s a provision to request a change of venue if the defendant feels the situation in the locale is such that they cannot get a fair trial.

Also, a judge has (I recall seeing it in the news) the option of directing a jury to return “no guilty” or dismissing the charges in that the prosecution has failed to prove the case.

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the classic nullification case (probably repeating myself, not going through 5 pages of posts) is Dr. Henry Morgentaler of Montreal. He was charged with performing an illegal abortion. Apparently he pretty much openly ran a clinic. A jury refused to convict him, the Quebec appeal court substituted a “guilty” verdict.

At the time, the law in Canada had an “out”, abortion was legal if the hospital doctor committee decided it was necessary for the physical or mental health of the mother. As a result, abortion was freely available in some places and impossible in others. Morgentaler thought this was unfair and stupid. the only way they could get a “victim” to testify against him, was to threaten a single African visa student that they would revoke her visa and send her home and tell her family why (where she would likely be killed) if she did not testify about her abortion.

The supreme court of Canada heard the case. The devoutly Catholic minister of Justice, Otto Lang, offered a bet that an appeal court would never nullify a jury verdict again in his lifetime. The Supreme court affirmed the primacy of jury verdicts and said all the appeal court could is order a new trial. In the meantime, he was charged a second time and the jury again acquitted, and the appeal court again substituted a conviction. The retrial, a jury for a third time acquitted.

Eventually, a more progressive government was elected in Quebec and they declined to prosecute him any further.

Eventually, the Supreme Court also affirmed the right to abortion must be more uniform and available country-wide and the current law was unacceptable. So there you go, what was jury nullification one day became perfectly legal the next. The persecution of an obsolete and unfair law was undone mainly because the juries in predominantly Catholic Quebec declined to convict.

242

You yourself argued that “one random individual with an outlier point of view is not going to create a jury nullification” – the point is that in the Jim Crow South, the notion that a white should not be convicted for killing a black wasn’t an outlier view in the white community. The fact that blacks could not serve on juries was also a problem, but a separate problem.

Even if you had a jury of six whites and six blacks in, say, 1935 Alabama, you need twelve for conviction. If the six whites refuse to convict, you get a mistrial. Empanel a new jury of six whites and six blacks, the six whites refuse to convict, you get a second mistrial. Empanel a new jury, lather, rinse, repeat. That is most definitely jury nullification, but it’s not justice.

Similarly, if the dominant opinion in a locale is against the defendant, regardless of the law, then with nullification you might get eight or nine or ten votes to convict. That too results in a mistrial, but when a jury is mostly in favor of conviction, there WILL be a second attempt by the prosecutor (who, after all, is usually an elected official and will be asking these same people for votes). The prosecutor keeps going back to trial until the jury convicts or the defendant pleads guilty to something just to stop the trials.

If you are relying on the judge to overturn a runaway jury, then what’s the point of arguing that the jury should be the sole source of justice?

I don’t dispute that there are bad laws, and your anecdote about Quebec illustrates one I’d probably agree is bad. However, telling a jury that they can ignore the laws they don’t like presupposes that everybody will agree as to what constitutes bad laws (or, more importantly, agree WITH MY OPINION about what is a bad law :slight_smile: ).

Also, if everybody agrees, though, then how did the law get passed in the first place, and who keeps electing the people who fail to reform it and the people who keep prosecuting it?

243

You must have confused me with someone who favors nullification. I think it’s a stupid idea, at least in a truly democratic society.

244

No, that was intended as a generic “you”, not aimed at anyone specifically. Sorry for the confusion.

The idea I was trying to convey is perhaps more properly worded as:

If the primary argument for jury nullification is “justice residing with the jury” (the members of the jury will be better suited than the faceless “law” to render justice), BUT the system will continue to rely upon judges to impose directed verdicts or dismiss the charges when the jury goes too rogue (“nullify the jury”?), is that not an inherently untenable contradiction?

245

Don’t you call me generic, si… oh, I see. Carry on. :slight_smile:

246

If the majority of white jurors declare “I can’t convict a white man of killing a black man” then they disqualify themselves. If jurors lie to get on the jury, then they perjure themselves. Regardless, if the majority feel the laws do not apply to the minority, your big problem is not jury nullification. The fix is not eliminating jury nullification. (except maybe, martial law if the situation warrants it)

The judicial system does have the option in many ways of overturning an inappropriate guilty verdict by a jury. they simply cannot overturn a “not Guilty” verdict. So a judge can restrain a runaway jury only if its running in one direction.

Considering how rarely a jury is hung or blatantly acquits, the system is working as designed. Clearly bad laws are simply not prosecuted on the theory “we’ll never get a jury to convict on that”. Just the option of nullification makes the authorities think twice on some action. As a previous post noted, many minor drug infractions are ignored because it’s not worthwhile bringing them to trial. It might be against federal law to cultivate marijuana in Colorado, but I suspect no DA is going to try to bring a case against a licensed grower to trial for now. If they had their own set of pet judges handing down pre-ordained verdicts, who knows how they might have proceeded?

As I also said in a much earlier post, most descriptions by people who have sat on juries, they took the job seriously and considered the evidence. It is an incredibly rare case where the issue is not guilt or innocence but the appropriateness of the law.

Would you, for example, convict an 18-year-old of having consensual sex with his 15year-11month-old girlfriend knowing that he would become a registered sex offender for life, probably unable to obtain a good job or live in many communities?

247

Why would they disqualify themselves? A bald statement that “I can’t convict a white of killing a black” would be disqualifying, but the more usual question is something along the lines of “will you be able apply the law fairly?”; if the jury is specifically told in closing arguments or jury instructions (as several in this thread have advocated, including the OP) that they can disregard the law if/when they find it appropriate, what exactly is disqualifying? They CAN apply the law fairly, but they just got told they didn’t HAVE to do so.

I would agree that most jurors do take the job seriously. In those incredibly rare cases where the appropriateness of the law is in question, though, what makes anybody think that everybody else will agree to the same interpretations of appropriateness?

In my state, he would not be–we passed a Romeo and Juliet law to address precisely that circumstance. That, in general, seems to be a better solution to the problem than some juries deciding one way and other juries a different way.

248

Yes, justice comes form uniformly applying a law and changing it if it is found to be unfair.

Randomly applying or disregarding a law is neither just not fair.

249

Not applying an unfair, unjust law is another form of “justice”. No matter who does it…

Of course we’re arguing in circles here. I suppose this is the future of Straight Dope, that the same thread will pop up to add a few more pages every few years until they are all 20 or 30 pages long.

So laws change. What was a crime one day could be acceptable behaviour the next - sitting at the front of the bus, eating at a whites only counter, marrying the opposite race, homosexual activity. Juries can just help that process along - essentially another sanity check in the evolution of social acceptability.

No system is perfect. Jury nullification is a check and balance against state persecution, just as in the days of the Magna Carta. It has its positive and negative aspects, and has been used to either end throughout history. I would rather there be a check and balance than that there not be one. As the design of the US Federal government has show, checks and balances help preserve equilibrium.

Regardless, to get back to the OP - it exists, but the legal arguments in a trial cannot explicitly call on the jury to ignore the law. The jury has to dream that action up all by itself - which in a way, is another check/balance.

250

Whether the law is unfair or unjust up to the body politic to determine through the democratic/constitutional system. It’s not the jury’s job. The jury’s job is merely to determine the truth if the facts and apply the duly enacted law to those facts. Period.

251

Whether the law is unfair or unjust is society’s call.

Politicians may be on the cutting edge, bravely and decisively leading from in front, or they may be behind the social bell curve. Jurors are a part of society. When presented with a need for a decision, jurors decide as they see fit. It’s an integral part of the democratic system, just as elections are - and both equally beyond second-guessing of results by authorities.

Jury nullification exists. Some jurisdictions embrace it, some are hostile to it. I don’t see a groundswell to remove it, nor a deep social desire to do so, nor a practical method to do so that would not severely curtail 900 years of democratic evolution.

As a much earlier post said, the jury deliberates in secret, decides however it wants, and once it does, it is not up to the courts to analyze the jury’s rationale or motives.

So my opinion or yours notwithstanding, the status quo is likely how it will stay.

252

Jury nullification only ‘exists’ in so far as jurors cannot be punished for something they do in secret. It’s like saying that it’s legal to beat your dog as long as no one finds out. If a jury member seems likely to vote to acquit without considering the facts of the case, he will be removed (and possibly held in contempt in extreme cases?)

253

Consider the inertia required to change the migratory bird treaty.
Would you send this guy to jail for six months?

254

No, a judge decides sentencing. If I was selected for his jury, I would carefully consider the facts of the case, and decide whether the prosecutors proved beyond a reasonable doubt that he had committed the crime he was charged with. Just as the oath I would take would require me to do.

255

So you’d convict a Jew of being a Jew and send them to the camps? The jury has the additional purpose of determining justice by refusing to convict under unjust laws.

256

I’ll simply quote myself.